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Lecture 4

To establish fault in delict, the defendant must have had the capacity to be at fault and acted intentionally or negligently. There are two requirements for negligence - that the harm was reasonably foreseeable and preventable. While fault is typically required, vicarious liability makes one person legally responsible for the unlawful actions of another in certain relationships, such as employer-employee. The employer can be liable even without fault under the standard test if the employee's actions were within the scope of employment.

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27 views

Lecture 4

To establish fault in delict, the defendant must have had the capacity to be at fault and acted intentionally or negligently. There are two requirements for negligence - that the harm was reasonably foreseeable and preventable. While fault is typically required, vicarious liability makes one person legally responsible for the unlawful actions of another in certain relationships, such as employer-employee. The employer can be liable even without fault under the standard test if the employee's actions were within the scope of employment.

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nkalampumelelo82
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© © All Rights Reserved
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Download as PPTX, PDF, TXT or read online on Scribd
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Fault

Chapter 8: Loubser and Midgley


Textbook
To establish delictual liability, the defendant must be at fault that is,

a) The person must be accountable at the time of causing the harm(capacity to


be at fault
b) The Defendant must have been culpable or blameworthy (either act
intentionally or negligently).

In the enquiry into fault, we are concerned with the defendant’s state of
mind/mental disposition as well as the degree of care exercised at the time of the
harm causing event.

There is fault on the part of the defendant if he/she acted with a reprehensible
state of mind (intention) or with insufficient care (negligence).
S v Ngubane [1985]2 All SA 340 (A) ( difference between Intention and
negligence):

“Dolus connotes a volitional state of mind. Culpa, it would seem, may entail no state of

mind at all . . . [It] is constituted by conduct falling short of a particular standard, viz that

of the reasonable man.”

Accountability as a requirement for fault:

A person's capacity to distinguish between right and wrong and to act in


accordance with that distinction. If a person cannot distinguish between right and
wrong and act in accordance with that distinction, we cannot find fault.
Circumstances where a person could be found to lack accountability: You can just
read these : Textbook page 140 to 143.

• Youthfulness: Younger than 7, irrebuttable presumed to lack capacity- Never


accountable,
• 7 to 14, rebuttably presumed to lack capacity unless otherwise proven,
• 14 to 18- presumed to have capacity unless proven otherwise.
• Mental illness
• Intoxication
• Anger due to provocation.
Negligence (careless, thoughtless, imprudent conduct)
Standard of care demanded: that which a reasonable person in the position of the
defendant would exercise in the same situation.

The test for negligence: Kruger v Coetzee 1966 (2) SA 428 (A) at 430E – F:
(a) “a diligens paterfamilias in the position of the defendant –
(i)would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps”.
Who is the reasonable person? The reasonable person is reasonably attentive, and has the
reasonable degree of alertness and concentration necessary for using his or her senses to
perceive his or her surroundings and recognise any danger. The person makes use of those
senses to a reasonable degree in order to perceive the risks inherent in his or her particular
surroundings. The reasonable person also has, to a reasonable extent, the power to correlate
past experience and knowledge with the specific facts of a particular situation in order to
perceive and judge the risks involved. Unless circumstances indicate the contrary, a reasonable
NB: The reasonable person test can be adapted (Not important for us): Textbook
page 170.

Test for negligence stands on two pillars: (page 157 of Loubser)

• Reasonable Foreseeability: negligence cannot be imputed unless it can be


established that the harm was reasonably foreseeable

• Reasonable Preventability: Once the harm was reasonably foreseeable, was it


reasonably preventable. Did the defendant take reasonable steps to prevent the
harm from manifesting.
Liability without Fault (strict Liability). Page 465 of Loubser and Midgley Textbook .

Generally, we accept that can be no liability in SA Law without fault. Thus, we


acknowledge that for liability to ensue in delict, one has to act intentionally or
negligently.
Focus: Vicarious liability:(Page 444 of Neethling - Potgieter)
• The strict liability of one person for the delict of another.
• Person liable not for delict committed by himself but for delict committed by
another.
• Exists when there is a particular relationship between the parties concerned i.e:
employer-employee, principal agent, motor car owner-motor car driver. Focus:
Employer-employee relationship.(444-453 of Neethling –Potgieter).
Why does this exist:
To ensure that employers actively take steps to prevent employees from harming
• Two test apply to determine vicarious liability:

• Standard Test: Employee commits a delict whilst going about the employers business.

• Deviation test: Where the employee deviates from the course and scope of his employment.
Employer will escape liability if the employee subjectively intended to promote solely his own
interest and his conduct is completely disconnected from the affairs of the employer.

NB: Requirements for Vicarious liability(444-453 of Neethling –Potgieter).


NB: Groenewald v Irvin & Johnson Limited and Others (3595/08) [2017] ZAWCHC 62 (17 May
2017) (paragraph 11-15)

Feld man v Mall example: the delivery of parcels.

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